significant regulatory burden and bears similarities to the existing OIG and
CMS self-disclosure protocols for anti-kickback and Stark law violations.217
CMS also further defined the temporal scope of a provider’s investigative
responsibilities with a proposed ten year look back period. That is,
overpayments must be reported and returned if a person identifies it within
ten years of the date it was received.218 With these provisions, the
government makes clear its expectations that providers implement adequate
policies and procedures to monitor payments received from federal
healthcare programs and identify any overpayments in order to avoid
liability risks.

V. HOSPITAL/ PHYSICIAN ALIGNMENT CRITICAL TO VBP, BUT LEGALLYCHALLENGING TO ACHIEVEAs discussed at length herein, Value Based Purchasing is indeed poisedto transform the nation’s healthcare reimbursement model. This paper hasdiscussed each aspect of the VBP template set forth by CMS in itsRoadmap to Implementing VBP,219 examining the progression of VBP from“pay for reporting” stages to now robust “pay for performance” programsthat extend opportunities to hospitals in 2013 to earn incentive payments forperformance achievements. Moreover, HHS’ commitment to transparencyand the agency’s steady movement along the VBP continuum toward“efficient resource use” and, ultimately, “paying for value,” has beenrecognized herein.220 Yet, CMS’ VBP template includes one additionalelement not yet discussed, but which is undoubtedly critical to thetransformative potential of VBP. In short, hospital-based care is not likelyto reach its peak quality improvement potential if the hospital’sorganizational interests are not well aligned with the interests of thephysicians who deliver the care within its walls. This section examines the

217. A disclosure through the CMS Self-Referral Disclosure Protocol (SRDP) tolls the
60-day deadline for returning overpayments related to physician self-referrals. The preamble
to the Proposed Rule clarifies that a SRDP submission only tolls the 60-day deadline for
repayment and does not toll the 60-day deadline for reporting the overpayment through the
self-reported overpayment refund process. Unlike an SRDP submission, a submission
through the OIG Self-Disclosure Protocol would suspend the repayment obligation and the
reporting obligation. See Beimers, supra note 215.

218. See generally Pitts & McCurdy, supra note 211; Beimers, supra note 215. The ten-year look-back matches the outer limit of the statute of limitations for the False Claims Act.
CMS also proposes to amend the reopening rules to be consistent with the ten-year look-back for the 60-Day Rule. Under the Proposed Rule, reporting and repayment would be
required for all overpayments identified within ten years of receipt. This is a significant
increase in potential exposure and recordkeeping obligations. In accordance with this
timeframe, CMS is also proposing to extend its reopening period to ten years.